Marquette Law Review Volume 41 Article 5 Issue 4 Spring 1958

Traumatic Neurosis Maria Lubitz

Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons

Repository Citation Maria Lubitz, Traumatic Neurosis, 41 Marq. L. Rev. 421 (1958). Available at: http://scholarship.law.marquette.edu/mulr/vol41/iss4/5

This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. COMMENTS TRAUMATIC NEUROSIS I. INTRODUCTION Every personal injury affects in some measure both the mind and the body. The legal compensability of the mental aspect of such in- jury was, for centuries, so limited as to be practically nonexistent. An emerging body of modem medical and scientific theory respecting the nature and degree of mental harm has been reflected in recent tenden- cies to re-examine the traditional legal attitude.' Insofar as mental injury disables the victim of tort to an extent no greater than a coinciding physical injury, no substantial problem of compensation is likely to arise. The legal approach to such cases is simply to merge the mental injury, most commonly under the label of pain and suffering, in the physical, permitting the latter to control the value of the case. Mental injury may, however, be substantially more disabling, or it may persist far longer than the physical injury. Or, there may be evidence of mental harm where no physical injury in fact resulted from the tort. In these instances, the mental harm may be con- sidered to be excessive, or unrelated to the physical injury. Whenever disproportionate mental harm is encountered as one of the consequences of a tortious act, traumatic neurosis may constitute an element of the injury. It is the purpose of this article to indicate the present state of medi- cal and scientific progress in the field of traumatic neurosis. It will be the further purpose to summarize the present legal status of mental harm as a basis of civil liability in general and to consider the rationale underlying liability and compensation for mental harm, particularly with respect to traumatic neurosis. II. MEDICAL BACKGROUND 2 A. In General: The term, physical aspect of the personality, has reference to the tangible body tissues, such as the blood, bones, nerves, muscles and their functions. The mental aspect, or the mind, encompasses the con- scious and unconscious functioning of the nervous system. The con- scious processes of the mind are concerned with such functions of the brain as thinking, association, memory and speech. The unconscious 3 processes include the emotions such as love, hate, rage and fear.

I Goodrich, Emotional Disturbance as Legal Damage, 20 MICH. L. REv. 497 (1922); Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 HARV. L. REv. 1033 (1936); Harper and McNeely, A Re-examination of the Basis of Liability for Emotional Disturbance, 38 Wis. L. Rxv. 426. 2 The following texts have been used as authority for the medical background of traumatic neurosis: STRECKER, PRACrICAL CLINICAL PSYCHIATRY (7th ed. 1951) and NoYEs, MODMEl CLINICAL PSYCHIATRY (4th ed. 1953). 3 For a more detailed description of the anatomy of the nervous system with MARQUETTE LAW REVIEW [Vol. 41

The term, pathology, denotes any abnormality of structure or func- tion of body or mind. A pathological condition may result from disease or injury. In some instances, the cause may not be susceptible of ob- jective observation, in others it may be unknown. One must beware, however, of thinking of the physical and mental aspects of the personality in terms of a dichotomy of body (soma) and mind (psyche). The essential unity of the person, traditionally, has been accepted in the philosophical thought of medicine. Psychiatry has long maintained ". . . that man was a total and indivisible unity, and, therefore, in health and disease, every somatic process at once reverber- ated in all of the man and notably in his emotions; conversely, that every emotional reaction, whether it was violent and pathologic, like rage, or merely feeling tone, like a mild state of satisfaction, immediately had repercussions in every tissue and cell of the body." 4 Recent studies of the physiological (functional) changes incident to psychological (mental) disturbances have re-emphasized this unity. These studies, known as "psycho-somatic" research, have demonstrated the interaction of mental and physical processes, and the interdepend- ence of function and structure of the organism. 5 B. The Neuroses: The neuroses are pathological conditions primarily affecting the mind. They are generally considered to be relatively mild disorders of mental functions. A neurosis may be distinguished from other dis- orders affecting the mind, as for example a psychosis, in that the neu- rotic individual remains oriented as to his environment while the victim of a psychosis may lose touch with reality. The neurotic is concerned with himself and with his symptoms. Usually this disorder is only temporarily disabling. In its overt or acute phase it may, however, seriously interfere with daily life and occupation. A neurosis is not considered to be an intermediate or transitional stage leading to the outbreak of the generally more serious disorders such as psychopathic personality disorders or psychoses. 1. Medical Causation of the Neuroses: The most recent official classification of mental disorders adopted by the American Psychiatric Association lists the neuroses or psycho- neuroses (the latter term is preferred as emphasizing the mental char- acter of the disturbance) as one of the "disorders of psychogenic origin or without clearly defined tangible cause or structural change in the

reference to psychosomatic disturbance see Wasmuth, Psychosomatic Disease and the Law, 7 CLEV.-MAR. L. REV. 34, 36 (1958). 4 Strecker, op. cit. supra note 2, at 430. 5 See Wasmuth, Medical Evahlation of Mental Pain and Suffering, 6 CLEV.- MAR. L. REv. 7 (1957) and Cantor, Psychosomatic Injury, Traumatic Psycho- neurosis, and Law, 6 CLEV.-MAR. L. REv. 428 (1957). 1958] COMMENTS brain."'6 Psychogenic origin simply means that the cause lies in the mental life. A complex mechanism is believed to be involved in this causation which requires a more detailed explanation in order that the relation- ship of the neuroses to trauma may be appreciated. One widely ac- cepted view as to the operation of this mechanism is that originally formulated and described by Freud, and illustrated by his classic case reports.7 Freud believed that man's behavior is motivated by uncon- scious urges seeking gratification, as well as by conscious thoughts. The so-called normal or well-adjusted individual adapts to the experi- ences of life, to environmental exigencies, by a repression, a losing in the unconscious, of these instinctive urges which would result in socially unacceptable behavior. In the neurotic, the process of this adaptation is faulty. Although the neurotic achieves the same result as does the normal individual, the repression is not successful. This results in fear, either that the instinctive gratification may not be found, or that, in finding it, personal danger or discomfiture may result. It must be understood that there is no conscious awareness of this fear, of the emotional conflict which produces it, or of the mechanism of the adaptation as a whole. This fear is expressed in what the psychologist calls the "affect"" of anxiety. The term, "affect," may be defined as the degree and capacity of emotional reaction in response to stimulation. It is a characteristic of the particular makeup or consti- tution